Experts on the Road to Success
August 14, 2017
Each year, our personal injury department hosts a seminar looking at different aspects of litigation. This year’s headline topic is “Navigating the Road to Success”. That put me in mind of a lawyer beginning upon a case at the start of a long and winding path. There are twists and turns and difficulties ahead. Some of them you can make out, some of which are yet to come into view. Your guide along this path is your expert witness. How far you get, and how well you deal with the challenges ahead will largely depend on them.
Now…imagine that path is made of yellow bricks. Let’s think about what qualities you might be looking for in your expert to help you along the way.
Not to suggest that any expert is brainless(!) but consider these two points:
1. Does your expert possess the specific skill and experience that is relevant to your case? A general orthopaedic surgeon is likely to be trumped by a wrist surgeon in commenting on a difficult wrist injury. A wrist surgeon who has never performed the type of surgery the injured person had/needs could be outdone by a specialist. Be picky. Dig down into what is needed for your case and whether a proposed expert can deliver.
2. How is your expert’s ‘litigation brain’? Academic and clinical brilliance do not necessarily translate to great analysis of a case and presentation of an opinion. I sometimes see reports where an expert hasn’t understood the case being put, or has failed to apply the standard of proof correctly. Obvious mistakes can undermine an expert’s overall credibility.
I have experience of seriously injured claimants complaining of how they were treated by experts instructed on their behalf. The most common complaints are that an expert’s consultation and examination took mere minutes and/or that the expert did not seem interested in what the claimant had to say. This does not always come across when the expert’s report is produced and is read by lawyers. It can still seem like a document and an opinion worthy of being relied upon. It does usually have the effect of shaking a claimant’s faith in their expert (and perhaps their legal team). Most importantly, perhaps, the quality of the expert’s evidence gathering is obviously undermined if not enough time is spent asking questions and investigating the circumstances of the case. Compassion and a willingness to listen to a claimant’s story is an important but often overlooked quality of a good expert.
Specifically, courage of conviction. An expert who folds under gentle questioning in a conference is a disappointment. An expert who says one thing in conference and then folds in a discussion with their opposing number is a disaster! Of course, an expert should be prepared to acknowledge a range of opinion where it exists and should make appropriate concessions. However, once he or she has considered the case, expressed an opinion and offered an explanation in support they must be prepared to back themselves in the face of questioning and opposition.
Know the way home
The difference between success and failure may be ‘getting home’ on a particular point of expert evidence. As litigation progresses, it is important that the expert understands the context of the case, the role their evidence plays and the importance of their opinion. If they eventually end up in the witness box they should be fully appraised of the issues in the case surrounding their involvement. Before that point, a good expert should be able to offer solutions to key problems in conference.
The selection and management of expert witnesses is absolutely crucial to the success of any case. Know your expert, and make sure they know what you expect from them over and above the ‘givens’ of independence, insight and clarity. Draw on their brains, heart and courage to navigate the path to success and, ultimately, get you home.